SA’s abstinence on UN sexual and gender rights vote is reckless

Last week, the United Nations Human Rights
Council adopted a resolution to create an independent
expert on sexual orientation and gender
identity. The expert will monitor the implementation
of international human rights laws,
facilitate dialogue and enable more systemic support by
the UN system to address violence and discrimination
based on sexual orientation and gender identity.

In a sorry tale of misapplied ABC (Abstinence, Be faithful,
use a Condom) policy, South Africa chose to abstain
from voting in support of this crucial resolution despite
prior indications to the contrary.

When it comes to matters of sexual politics, abstinence
is usually unsatisfactory.
South Africa should rather be
faithful to a constitutionally aligned position on sexual
orientation and gender identity (Sogi), particularly as it
led an unprecedented UN resolution on this issue in 2011.
When voting on a follow-up resolution in 2014, Abdul
Samad Minty, then UN ambassador, invoked its alignment
with the Constitution in that “South Africa believes
that no one should be subjected to discrimination or
violence based on their sexual orientation or gender
identity”.

In May this year, Deputy Minister of Justice and
Constitutional Development John Jeffery gave the keynote
address at the Pan African International Lesbian,
Gay, Bisexual, Trans and Intersex Association’s conference
held in Johannesburg. He underscored the “groundbreaking
developments in our region and our continent
on sexual orientation”. Drawing attention to South
Africa’s role in these processes, Jeffery affirmed that:
“Every step in preventing Sogi discrimination and prejudice
is ground-breaking. The world is slowly changing
and we are moving forward.”

Yet a few weeks later, South Africa’s new ambassador
to the UN abstained from a resolution that, in mandating
an independent sexual orientation and gender identity
expert, would build on and strengthen the previous two
resolutions our country has endorsed.

In tabling the abstention, ambassador Nozipho
Mxakato-Diseko started off by affirming the constitutional
mandate: “For South Africa, respect for the promotion,
protection and fulfilment of human rights and
fundamental freedoms enshrined in our Constitution
constitutes a critical pillar of our foreign policy.” Then
she stated that: “Guided by this conviction, South Africa
tabled the original resolution on Sogi and on the LGBTI
[lesbian, gay, bisexual, trans and intersex] issue in 2011.”
But abstinence is frustrating and can be undiplomatic.
Mxakato-Diseko cited South Africa’s reasons for abstaining
as the “recklessness”, “grandstanding” and “arrogant
and confrontational approach adopted” by the Latin American
states that led the resolution.

She sounded a caution: “There is an African proverb
that says: ‘If you want to walk fast, then walk alone. If you
want to walk far, walk together with others’.”
So, from a department of justice that, just weeks prior,
had stressed the importance of moving forward on sexual
orientation and gender identity, we now have a department
of international relations that’s far keener on slowing
down the walk to freedom for LGBTI people.

This kind of abstinence isn’t a case of playing it safe.
Rather, it exposes deep disjunctures that have more to do
with principle than pace. It also reflects a lack of transparency
and coherence on sexuality and gender rights,
which weakens South Africa’s commitments to upholding
them.

A number of the 628 nongovernmental organisations
that had made a public call for the independent expert
were from South Africa. Despite unprecedented transnational
mobilisation against discrimination, sexual and
gender rights are often bartered in international negotiations,
which themselves are implicated in the maintenance
of unequal power arrangements.

LGBTI rights are frequently deployed in expedient ways
to shore up political legitimacy on both national and
international fronts. We see this from states that use the
defence of LGBTI people to legitimise their own oppressive
practices, such as pinkwashing in Israel, European
anti-immigration policies, and the US’s so-called war on
terror.

This expediency is also evidenced by autocratic leaders
who mobilise against sexual and gender rights to
gain popularity and domestic credibility, and to deflect
attention from local democratic pressures, for example in
Uganda and Russia.

Although international human rights mechanisms are
important to hold state power to account and defend
against its violent and exclusionary tendencies, human
rights are often played in these spaces. Misalignments
between South Africa’s national and international positions
on sexual orientation and gender identity suggest
a dangerous double game. This is probably linked to the
country’s regional positioning and associated political
interests that, although they needn’t, frequently compromise
our consistency on human rights.

The rights and justice principles in the Constitution
mandate the terms for how leaders are to govern, both
inside and outside our borders. As a consequence, retrogressive
and contradictory stances on sexual orientation
and gender identity must be accounted for. Leaders who
determine the pace and content of sexual and gender
politics in ways that undermine constitutional rights and
protections are, in the words of Mxakato-Diseko herself,
guilty of arrogance and recklessness.

Melanie Judge is an adjunct associate professor at the
Centre for Law and Society in the faculty of law at the
University of Cape Town, and a trustee of the Gay and
Lesbian Memory in Action. The views expressed are her own

Melanie Judge

Melanie Judge is a queer and feminist activist and adjunct associate professor in public law at the University of Cape Town. She is also the author of Blackwashing Homophobia: Violence and the Politics of Sexuality, Gender and Race Read more from Melanie Judge